Joseph E. diGenova is a founding
partner of diGenova & Toensing, LLP. He received his B.A. from the
University of Cincinnati and his J.D. from Georgetown University. He has served
as United States Attorney for the District of Columbia, Independent Counsel of
the United States, Special Counsel to the U.S. House of Representatives, Chief
Counsel to the U.S. Senate Committee on Rules and Administration, and Counsel
to the U.S. Senate Select Committee on Intelligence (the Church Committee).
Over the past year, facts have emerged that suggest there
was a plot by high-ranking FBI and Department of Justice (DOJ) officials in the
Obama administration, acting under color of law, to exonerate Hillary Clinton
of federal crimes and then, if she lost the election, to frame Donald Trump and
his campaign for colluding with Russia to steal the presidency. This conduct
was not based on mere bias, as has been widely claimed, but rather on deeply
felt animus toward Trump and his agenda.
In the course of this plot, FBI Director James Comey, U.S.
Attorney General Loretta Lynch, FBI Deputy Director Andrew McCabe, FBI Deputy
Director of Counterintelligence Peter Strzok, Strzok’s paramour and FBI lawyer
Lisa Page, FBI General Counsel James Baker, and DOJ senior official Bruce
Ohr—perhaps among others—compromised federal law enforcement to such an extent
that the American public is losing trust. A recent CBS News poll finds 48
percent of Americans believe that Special Counsel Robert Mueller’s Trump-Russia
collusion probe is “politically motivated,” a stunning conclusion. And 63
percent of polled voters in a Harvard CAPS-Harris Poll believe that the FBI
withheld vital information from Congress about the Clinton and Russia collusion
investigations.
I spent my early legal career as a federal prosecutor. I
later supervised hundreds of prosecutors and prosecutions as a U.S. Attorney
and as an Independent Counsel. I have never witnessed investigations so fraught
with failure to fulfill the basic elements of a criminal probe as those
conducted under James Comey. Not since former Acting FBI Director L. Patrick
Gray deep-sixed evidence during Watergate has the head of the FBI been so
discredited as Comey is now.
The
Case of the Clinton Emails
The Hillary Clinton email scandal began in 2013 with the
U.S. House of Representatives investigation into the attack on the American embassy
in Benghazi, Libya, on September 11, 2012. It was during that investigation
that accessing Secretary of State Clinton’s emails became an issue. But it
wasn’t until The New York Times broke the story on March 2,
2015, that Clinton had a secret, personal server that things really took off.
Thousands of emails that the House at first requested,
then subpoenaed, conveniently disappeared—remember those reports about
BleachBit and the smashing of Clinton’s numerous phones with hammers? Clinton
and her aides were, to say the least, not forthcoming. It was clearly time for
the FBI and DOJ to act, using the legal tools at their disposal to secure the
emails and other materials the House had subpoenaed. But that didn’t happen.
One tool at their disposal was the grand jury—the sine
qua non of a criminal investigation. Grand juries are comprised of 16
to 23 citizens who hear a prosecutor’s case against an alleged criminal. The
subject of the investigation is not present during the entire proceeding, which
can last up to a year. A grand jury provides investigators with the authority
to collect evidence by issuing subpoenas for documents and witnesses. FBI
agents and prosecutors cannot themselves demand evidence. Only a grand jury
can—or a court, in cases where a subpoena recipient refuses a grand jury’s
command to provide documents or to testify.
Incredibly, FBI Director Comey and Attorney General Lynch
refused to convene a grand jury during the Clinton investigation. Thus
investigators had no authority to subpoena evidence or witnesses. Lacking
leverage, Comey then injudiciously granted immunity to five Clinton aides in
return for evidence that could have been obtained with a subpoena. Even when
Clinton claimed 39 times during a July 2, 2016, interview—an interview led by
disgraced FBI agent Peter Strzok—that she could not recall certain facts
because of a head injury, Comey refused the case agents’ request to subpoena
her medical records.
Comey claims he negotiated the immunity deals because of
his concern about time. Yet the investigation was opened in the summer of 2015,
nearly a year before he cut these deals. Compare this to the DOJ’s handling of
four-star Marine General James E. Cartwright, who pleaded guilty in October
2016 to a false statement about leaking classified information to The
New York Times. In that case, the DOJ bragged about its use of subpoenas
and search warrants.
Not only was there no grand jury, the FBI never issued a
search warrant—something it does when there is concern a person will destroy evidence.
Clinton deleted half her emails and then claimed, under penalty of perjury,
that she had turned over to the government all emails that “were or potentially
were” work-related. The FBI later found email chains classified as “secret” or
“confidential” that she had not turned over. Still no search warrant was
issued.
Comey’s dereliction did not stop at the failure to utilize
essential prosecutorial tools. He violated several rules that prosecutors
consider sacrosanct:
§ Comey allowed one
lawyer to represent four material witnesses, an arrangement ripe for the four
to coordinate testimony.
§ After needlessly
giving immunity to two lawyers representing Clinton, Comey permitted both to
sit in on her July 2, 2016, FBI interview—a patent conflict. He claimed he
could not control who sat in on the “voluntary” interview. That’s nonsense. He
could have convened a grand jury, subpoenaed Clinton, and compelled her to
appear and be questioned without a lawyer or else plead the Fifth Amendment.
§ Comey authorized
the destruction of laptop computers that belonged to Clinton’s aides and were
under congressional subpoena.
§ Comey ignored
blatant evidence of culpability. It is ridiculous to the general public and
risible to those who have security clearances for Clinton to claim she thought
that “(c)” placed after paragraphs in her emails meant the material was in
alphabetical order rather than meaning it was classified. If she thought (c)
indicated alphabetical order, where were (a) and (b) on the documents? Clinton
and her supporters touted her vast experience as a U.S. Senator and Secretary
of State, positions requiring frequent use of classified information and
presumably common sense. Yet neither experience nor common sense informed her
decisions when handling classified materials.
§ Comey and the FBI
never questioned Clinton about her public statements, which changed over time
and were blatantly false. “I did not email classified information to anyone”
morphed into “I did not email anything marked ‘classified,’” which morphed into
the claim that (c) did not mean what it clearly meant. False and changing
statements are presented to juries routinely by prosecutors as evidence of
guilt.
§ Breaking DOJ
protocols, violating the chain of command, and assuming an authority he never
had, Comey usurped the role of the U.S. attorney general on July 5, 2016, when
he announced that the case against Clinton was closed. He justified his actions
saying that he no longer trusted Attorney General Lynch after her June 27,
2016, meeting with Bill Clinton on the tarmac at the Phoenix airport. This
meeting took place at the height of the so-called investigation—just days
before Peter Strzok interviewed Clinton on July 2. Thanks to the efforts of
Judicial Watch to secure documents through the Freedom of Information Act, we
now know that Comey was already drafting a letter exonerating Clinton in May
2016—prior to interviewing more than a dozen major witnesses. We also know that
the FBI’s reaction to the impropriety of the tarmac meeting was not disgust, but
rather anger at the person who leaked the fact of the meeting. “We need to find
that guy” and bring him before a supervisor, stated one (name redacted) FBI
agent. Another argued that the source should be banned from working security
details. Not one email expressed concern over the meeting. An FBI director who
truly had his trust shaken would have questioned the members of Lynch’s FBI
security detail for the Arizona trip about how the meeting came to be. Comey
didn’t bother.
Comey described Clinton’s handling of classified
information as “extremely careless,” a clumsy attempt to avoid the legal
language of “gross negligence” for criminal mishandling of
classified information—and we later learned that Peter Strzok, again, was
responsible for editing this language in Comey’s statement. But practically
speaking, the terms are synonymous. Any judge would instruct a jury to consider
“gross negligence” as “extremely careless” conduct.
Comey claimed that “no reasonable prosecutor” would bring
the case against Clinton. I have spent many years investigating federal crimes,
and I can tell you that a reasonable prosecutor would have utilized a grand
jury, issued subpoenas and search warrants, and followed standard DOJ
procedures for federal prosecutions. In short, Comey threw the case. He should
have been fired long before he was.
In late spring 2016, just weeks prior to Comey’s July 5
press conference clearing Clinton of any crime, FBI Deputy Director Andrew
McCabe ordered FBI agents in New York to shut down their investigation into the
Clinton Foundation. Their objections were overruled. Sources have told me that
McCabe also shut down an additional Clinton investigation. This is the McCabe
who, while he was overseeing the Clinton email investigation, had a wife
running for the Virginia State Senate and receiving more than $460,000 in
campaign contributions from a longtime Clinton loyalist, Virginia Governor
Terry McAuliffe. Moreover, it was only after the news of Clinton’s private
server became public in The New York Times that McAuliffe
recruited McCabe’s wife to run for office. McCabe eventually recused himself
from the Clinton probe, but that was one week before the 2016 election, after
the decisions to clear Clinton and to pursue the Trump-Russia collusion
investigation had already been made. So his recusal was meaningless.
In clearing legal impediments from Clinton’s path to the
Democratic nomination, Comey and his senior staff thought they had helped
Clinton clinch the presidency. Their actions put an end to a decades-long
tradition of non-political federal law enforcement.
The
Case of Trump-Russia Collusion
Rumors of collusion with Russia by Trump or the Trump
campaign surfaced during the primaries in 2015, but gained in strength soon
after Trump secured the Republican nomination in July 2016. Thanks to DOJ
Inspector General Michael Horowitz, we now know that high-level FBI officials
were involved in promoting these rumors. Among Horowitz’s discoveries were text
messages between FBI Deputy Director of Counterintelligence Peter Strzok and
FBI lawyer Lisa Page that suggest an illegal plan to utilize law enforcement to
frame Trump. The most revealing exchange we know of took place on August 15,
2016. Concerned about the outcome of the election, Strzok wrote:
I want to believe the path you threw out for consideration
in [Andrew McCabe’s] office—that there’s no way [Trump] gets elected—but I’m
afraid we can’t take that risk. It’s like an insurance policy in the unlikely
event you die before you’re 40.
No amount of sugar coating or post hoc explanation
of this and other texts can conceal the couple’s animus against Trump and
support for Clinton. Strzok’s messages illustrate his commitment to Clinton’s
victory and Trump’s defeat or, if Trump won, to an “insurance policy.”
The term “insurance policy” obviously refers to the
Trump-Russia collusion investigation, which to this day remains a probe with no
underlying crime. This is not the talk of professional investigators, but of
corrupt agents who have created two standards of justice based on their
political leanings. It looks like a reprise of the schemes undertaken during an
earlier era, under FBI Director J. Edgar Hoover, that led to the creation of
the Church Committee—a committee on which I served, and which tried to reform
the FBI to prevent it from meddling in domestic politics.
At the heart of the Russia collusion scheme is the FBI’s
utilization of a document paid for by the Clinton campaign and the Democratic
National Committee. Called the Steele Dossier because it was written by former British MI6 officer
Christopher Steele, this document contains unsubstantiated information designed
to taint Trump and his presidency. While Clinton partisans point out that
candidate Clinton never referred to the Steele Dossier in her speeches, the
fact is that she did not have to—the FBI hierarchy was doing it for her!
Indeed, FBI General Counsel James Baker was recently reassigned because of his
having leaked information about the Steele Dossier to the magazine Mother
Jones.
Not one claim concerning Trump in the Steele Dossier has
ever been verified by the FBI, according to Andrew McCabe himself in recent
testimony to the House Intelligence Committee. The only confirmed fact is
unsurprising: former Trump campaign adviser Carter Page traveled to Moscow on
his own dime and met with various Russians—all perfectly legal.
Comey and then-CIA Director John Brennan laundered the
Steele Dossier through the U.S. intelligence community to give it an aura of
credibility and get it to the press. It was also used by the FBI and senior DOJ
officials to secure wiretap warrants from a secret Foreign Intelligence Surveillance
Act (FISA) court. Then its contents, via court-authorized FISA warrants, were
used to justify the illegal unmasking of the identities of wiretapped Trump
officials. The contents of these National Security Agency intercepts were put
on spreadsheets and presented to members of President Obama’s National Security
Council (NSC)—specifically Susan Rice and Ben Rhodes—and subsequently leaked to
the press. According to former NSC staff, President Obama himself read the FISA
intercepts of Trump campaign personnel. Unsurprisingly, there was no request
for a leak investigation from either the FBI or the DOJ.
In sum, the FBI and DOJ employed unverified salacious
allegations contained in a political opposition research document to obtain
court-sanctioned wiretaps, and then leaked the contents of the wiretaps and the
identities of political opponents. This was a complex criminal plot worthy of
Jason Bourne.
The
Pall Over the Special Counsel and the FBI
Layered over this debacle is a special counsel
investigation unfettered by rules or law. Not surprisingly, James Comey
triggered the special counsel’s appointment—and he did so by design. According
to Comey’s testimony to the Senate Intelligence Committee, having been fired on
May 9, 2017, he leaked official documents to his friend, Columbia Law School
professor Daniel Richman, with the specific intent that Richman would leak them
to the press. Reportage on that leak is what led Deputy Attorney General Rod
Rosenstein to appoint Robert Mueller—a former FBI director and Comey’s good
friend—as special counsel to investigate allegations of Trump-Russia collusion.
Mueller’s reputation has been damaged by a series of
decisions that violate the ethical rules of appearances. For instance, he hired
Democratic partisans as lawyers for the probe: Andrew Weissmann, who donated to
Clinton and praised Acting Attorney General Sally Yates for disobeying Trump’s
lawful Presidential Order regarding a travel ban for residents of certain
nations that harbor terrorists; Jeannie Rhee, who donated to Clinton and
represented Ben Rhodes in the email probe and the Clinton Foundation
investigation; and Aaron Zebley, who represented Clinton IT staffer Justin
Cooper in the email server probe.
Mueller also staged a pre-dawn raid with weapons drawn on
the home of Paul Manafort, rousing Manafort and his wife from their bed—a
tactic customarily reserved for terrorists and drug dealers. Manafort has
subsequently been indicted for financial crimes that antedate his campaign work
for Trump and that have nothing to do with Russia collusion.
Then there’s the fact that when Mueller removed Strzok
from the investigation in July 2017, he didn’t tell anyone. The removal and its
causes were uncovered by DOJ Inspector General Michael Horowitz. Why was such
vital information concealed from the public? It is not, as is often claimed
now, that Strzok was a minor figure. All the major decisions regarding both the
Clinton and the Trump-Russia collusion investigations had been made under
Strzok.
Significantly, Strzok also led the interview of General
Michael Flynn that ended in Flynn pleading guilty to making false statements to
the FBI. It is important to recall that Flynn’s FBI interview was not conducted
under the authority of the special counsel, but under that of Comey and McCabe.
It took place during Inauguration week in January 2017. Flynn had met with the
same agents the day before regarding security clearances. McCabe called Flynn
and asked if agents could come to the White House. Flynn agreed, assuming it
was about personnel. It was not.
Flynn had been overheard on a FISA wiretap talking to
Russia’s Ambassador to the United States, Sergey Kislyak. There was nothing
criminal or even unusual about the fact of such discussion. Flynn was on the
Trump transition team and was a federal employee as the President-Elect’s
national security advisor. It was his job to be talking to foreign leaders.
Flynn was not charged with regard to anything said during his conversation with
Kislyak. So why was the FBI interrogating Flynn about legal conduct? What more
did the FBI need to know? I am told by sources that when Flynn’s indictment was
announced, McCabe was on a video conference call—cheering!
Compare the FBI’s treatment of Flynn to its treatment of
Paul Combetta, the technician who used a program called BleachBit to destroy
thousands of emails on Hillary Clinton’s computer. This destruction of evidence
took place after a committee of the U.S. House of Representatives issued
letters directing that all emails be preserved and subpoenaing them. Combetta
first lied to the FBI, claiming he did not recall deleting anything. After
being rewarded with immunity, Combetta recalled destroying the emails—but he
could not recall anyone directing him to do so.
The word in Washington is that Flynn pleaded guilty to
take pressure off his son, who was also a subject of Mueller’s investigation.
Always the soldier. But those who questioned Flynn that day did not cover
themselves with law enforcement glory. Led by Strzok, they grilled Flynn about
facts that they already knew and that they knew did not constitute a crime.
They besmirched the reputation of federal law enforcement by their role in a
scheme to destroy a duly elected president and his appointees.
A pall hangs over Mueller, and a pall hangs over the DOJ.
But the darkest pall hangs over the FBI, America’s premier federal law
enforcement agency, which since the demise of J. Edgar Hoover has been
steadfast in steering clear of politics. Even during L. Patrick Gray’s brief
tenure as acting director during Watergate, it was not the FBI but Gray
personally who was implicated. The current scandal pervades the Bureau. It
spans from Director Comey to Deputy Director McCabe to General Counsel Baker.
It spread to counterintelligence via Peter Strzok. When line agents complained
about the misconduct, McCabe retaliated by placing them under investigation for
leaking information.
From the outset of this scandal, I have considered Comey a
dirty cop. His unfailing commitment to himself above all else is of a pattern.
Throughout his career, Comey has continually portrayed himself as Thomas
Becket, fighting against institutional corruption—even where none exists.
Stories abound of his routine retort to anyone who disagreed with him (not an
unusual happening when lawyers gather) during his tenure as deputy attorney
general under President George W. Bush. “Your moral compass is askew,” he would
say. This self-righteousness led agents to refer to him as “The Cardinal.”
Comey is no Thomas Becket—he is Henry II.
A great disservice has been done to the dedicated men and
women of the FBI by Comey and his seventh floor henchmen. A grand jury probe is
long overdue. Inspector General Horowitz is an honest man, but he cannot
convene a grand jury. We need one now. We need our FBI back.
Thanks to Hillsdale College for Sharing.
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